Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: MamaTexan
Nullification is simply unworkable. Ultimately, someone has to determine constitutionality, and it is best if it is single high court in a comprehensive national system.

On the main point, the power of the Supreme Court to hold legislation unconstitutional, here is Hamilton, in Federalist No. 78:

" . . . Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable. There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. . . .

“If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority."

79 posted on 04/03/2012 5:02:40 AM PDT by Rockingham
[ Post Reply | Private Reply | To 78 | View Replies ]


To: Rockingham
On the main point, the power of the Supreme Court to hold legislation unconstitutional, here is Hamilton, in Federalist No. 78:

#78 does not uphold your contention that the federal government has the enumerated authority to hold STATE legislation unconstitutional.

As the discussion concerns the federal Constitution, it outlines the balance of power between the federal legislature and the federal judiciary. Its a basic illustration the 'separate but equal' concept of the 3 branches

After your quote, he continues:

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.

Remember, this was a totally NEW type of government. Do you seriously think the States intentionally joined something they could not control if necessary or leave if they had too?

------

BTW - if you like great resources here's Historical American Documents from us constitution.net.

This is also great - a massive database called The Avalon Project at Yale Law School.

80 posted on 04/03/2012 8:58:00 AM PDT by MamaTexan (I am a ~Person~ as created by the Law of Nature, not a 'person' as created by the laws of Man)
[ Post Reply | Private Reply | To 79 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson